Excerpt: - .....a. c. acharyya, munsif, first court, contai in title suit no. 88 of 1972, allowing the plaintiff-opposite party's prayer and directing the defendant-petitioner to unlock and make over the documents and materials kept under lock and key, as mentioned in the petition, upon receipt and in presence of the lawyers of both the sides.2. the facts leading on to the rule can be put in a short compass. a disputearose between the defendant, shri satyanarayan maity, stated to be the permanent head master of the halud-bari high school, and the managing committee thereof. the managing committee by a resolution dated 1-3-72 issued a charge-sheet against the defendant, suspending him and directing him to make over charge to the secretary. the plaintiff, shri sunirmalendu maity, stated to be the.....

Judgment:ORDER

N.C. Talukdar, J.

1. The defendant is the petitioner in this Rule which is directed against an order dated 14-11-72 passed by Shri A. C. Acharyya, Munsif, First Court, Contai in Title Suit No. 88 of 1972, allowing the plaintiff-opposite party's prayer and directing the defendant-petitioner to unlock and make over the documents and materials kept under lock and key, as mentioned in the petition, upon receipt and in presence of the lawyers of both the sides.

2. The facts leading on to the Rule can be put in a short compass. A disputearose between the defendant, Shri SatyaNarayan Maity, stated to be the permanent Head Master of the Halud-Bari High School, and the Managing Committee thereof. The Managing Committee by a resolution dated 1-3-72 issued a charge-sheet against the defendant, suspending him and directing him to make over charge to the Secretary. The plaintiff, Shri Sunirmalendu Maity, stated to be the Officiating Head Master, filed a suit, being Title Suit No. 88 of 1972, in the Court of the learned Munsif, First Court, Contai for permanent injunction and also applied for a temporary injunction therein for restraining the latter from entering the school compound and interfering with the function of the plaintiff. An objection was filed by the defendant but ultimately on 18-4-72, the learned Mun-sif passed an order for temporary injunction. On 25-9-72 an application was filed by the plaintiff praying for a direction on the defendant to hand over the documents mentioned in the Schedule of the petition on the ground 'that those were kept under lock and key, in violation of the order of injunction. An objection was filed on 30-9-72 by the defendant, stating inter alia that the room locked by him was further locked by the Secretary on 8-3-72, before the institution of the suit; and that the District Inspector of Schools (Secondary Education), Midnapore by his Memo. No. 1433 dated 30-5-72 had informed the Sub-divisional Officer, Contai that the plaintiff is not recognised by the Department as the Officiating Head Master and instructed him to preserve the papers of the school under lock and key as before, till the appointment of an administrator, who will take over charge of the papers with police help. A second application was filed in this behalf by the plaintiff on 3-10-72 and this was also objected to on merits. An application was also filed by the defendant with a prayer to call for the Memo. No. 1433 dated 30-5-72 from the Court of the Sub-Divisional Olficer for a proper decision in the matter. The prayer was allowed and the Memo. No. 1433 was called for on 10-11-72. A third application followed on 10-11-72, which was the date fixed for the hearing of the original application, adding to and supplementing the original applications filed on 25-9-72 and 3-10-72. No opportunity however was given, though prayed for, to the defendant to file his objection to this third petition and ultimately on 14-11-72 the learned Munsif allowed the prayer of the plaintiff. This order has been impugned by the defendant and forms the subject-matter of the present Rule. An ad interim stay of operation of the order was granted but further proceedings in the Title Suit were not stayed. An Affidavit-in-Opposi-tion, affirmed on 18-12-72 and an Affidavit-in-Reply thereto, affirmed on 22-12-72, were filed by the respective parties.

3. The contentions of Mr. Swadesh Bhusan Bhunia, Advocate, appearing onbehalf of the defendant-petitioner are broadly two-fold -- the first head relating to a contravention of the principles of natural justice and of procedure; and the second one relating to merits. Mr. Bhu-nia's contentions catalogued under the first head are :

(a) Denial of an opportunity, though prayed for specifically on 10-11-72 by the defendant-petitioner, to file an objection to the third application filed by the plaintiff-opposite party;

(b) Non-consideration of a material document, although specifically called for and produced at the time of the hearing, being Memo. No. 1433 dated 30-5-72 from the District Inspector of Schools (S. E.), Midnapore informing the Sub-Divisional Olficer, Contai, that the plaintiff-opposite party is not recognised by the Department as the Officiating Head Master and instructing the Sub-Divisional Officer, Contai, to preserve the papers of the School under lock and key as before, pending the appointment of an administrator to take charge of the records with the help of the police;

(c) Non-consideration of the objection filed on behalf of the defendant-petitioner on 10-11-72 to the Second Application filed on behalf of the plaintiff-opposite party; and

(d) Non-consideration of the fact that for a purported contravention of an order of injunction, the proper remedy is under Order 39, Rule 1 (2) and not, as the learned Munsif deemed the plaintiff's application to be, under Section 151, C.P.C. and that no mandatory direction, as given, should have been passed.

4. Mr. Bhunia's submissions on the second branch on merits are, viz.;

(a) That the Managing Committee of the School had no power to suspend the dcfcndnnt-pctitioner under Rule 28 (8) of the Rules for Management of Recognised Non-Government Institution (Aided and Unaided), 1969;

(b) In the absence of an approval of the Director under Rule 28 (1) (ii) of the Rules for Management, of the appointment of the plaintiff-opposite party on a temporary basis, he has no locus standi to act as the temporary Head Master; and

(c) In view of the provisions of Section 22 (4) of the West Bengal Board of Secondary Education Act, 1963 (West Bengal Act V of 1963), no suit lies in respect of a matter which has been referred to the Appeal Committee.

5. Mr. Jamini Kumar Banerjee, Advocate (with Mr. Tapash Kumar Mukher-jec, Advocate) appearing on behalf of the plaintiff-opposite party, joined issue. As to the first branch of the contentions relating to the contravention of the principles of natural justice and procedure, Mr. Baner-jee submitted that the objections raised in this behalf are more technical than seal,Inasmuch as the defendant-petitioner was given a full and fair hearing, causing thereby no prejudice to him; that the second objection filed on behalf of the defendant-petitioner on 10-11-72 is not a material one, being covered by the other two objections filed on his behalf earlier; and that the applications filed on behalf of the plaintiff-Opposite party for the return of the documents are maintainable under the provisions of Sections 94 and 151 of the Code of Civil Procedure. He referred in this context to the case of Manoharlal Chopra v. Hinilal, : AIR1962SC527 .

6. Mr. Banerjee finally submitted that, in any event, for the proper administration of the School, the papers and documents, kept under lock and key, are absolutely essential and as such the order directing the same to be made over to the plaintiff-opposite party is a proper order passed in the interests of justice.

7. Mr. Banerjee submitted with regard to the second branch of Mr. Bhunia's arguments on merits that the Managing Committee having the power to appoint, has also implied powers to suspend; that there has been a subsequent application for approval; and that Section 22 (4) of the West Bengal Act V of 1963, is merely a saving clause, having no manner of application to the facts of the present case. He also cited the case of Balvantrai Ratilal Patel v. State Of Maharashtra, : (1968)IILLJ700SC ; and the case of V.P. Gindroniya v. State of M. P., AIR 1970 SC 1496.

8. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, including the affidavits filed, I will now take up for consideration the first branch of Mr. Banerjee's contentions, relating to procedure and natural justice as the same goes to the very root of the case. It appears from the records that the hearing of the application dated 25-9-72, was fixed on 10-11-72, when the learned Munsif allowed the plaintiff to file the third application but rejected the prayer made on behalf of the defendant to file and objection thereto, although he passed the ultimate order on 14-11-72. Mr. Banerjee submitted that this did not however prejudice the defendant in any way as he had already sufficient opportunity to controvert the statements made in the first two applications. It is not possible to agree with Mr. Banerjee's submissions because the third application in fact brought to light material statements that required a reply, but the pertinent and specific prayer made in that behalf by the defendant-petitioner was brushed aside. A full and effective opportunity should have been given to the defendant to file the objection, in order to present his point of view, by way of reply to the statements incorno-rated in the third application filed on 10-11-72 by the plaintiff and the failure to do that hat vitiated the ultimate order.

9. The principle of audi alteram partem (hear the other side) lends assurance to the aforesaid view. The said doctrine is as old as the hills and as was observed by Lord Reid in Ridge v. Baldwin, (1963) 2 All ER 66 at p. 71 that 'the principle audi alteram partem goes back many centuries in our Law and appears in a multitude of judgments of Judges of the highest authority'. The imprimatur of judicial decisions undoubtedly lays down certain qualifications on the applicability of the principle of audi alteram partem to all cases and a distinction has been made between administrative acts on the one hand and judicial or quasi-judicial acts on the other. There are two conflicting schools of decisions on the point. In the case of Nakkuda Ali v. M. F. de S. Jayaratne, 1951 AC 66, the Privy Council rules out any opportunity to be given to the aggrieved person for making a representation where the Act complained of was an administrativc Act. The decision of the Privy Council is in the context of Reg. 62 Defence (Control of Textile) Regulations, 1945 and Lord Rndcliffe, delivering the judgment of the Court, observed at p. 78 that 'no procedure is laid down by the regulation for securing that the licence holder is to have notice of the Controller's intention to revoke the licence, or that there must be any inquiry, public or private, before the Controller acts'. In the case of Duraynppah v. Fernando, (1967) 2 All ER 152, the Privy Council however appears to have gone back upon its previous decision and Lord Upjohn delivering the judgment of the court laid down at p. 156 a triple test for the applicability of the principle of audi alteram partem. The same view was taken by Lord Parker, C. I. in the case of In re H. K. (An Infant), (1967) 2 WLR 962 and also by Lord Denning M. R. in the case of Schmidt v. Secretary of State for Home Affairs, (1969) 2 WLR 337. In a recent decision of this Court viz., in the case of Mihir Kumar Sar-kar v. State of West Bengal. : AIR1972Cal8 , Chief Justice P. B. Mukharji delivering the judgment of the Court declined to recognise 'the wind of change' in the Law as evidenced in a group of cases following the decision of the Privy Council in Nakkuda Ali's case and ultimately held that the real enquiry in such cases is whether the Act concerned 'specifically or by necessary implication excludes the provision of notice as part of natural justice claimed by the appellants'. The backdrop of the present case however is the Code of Civil Procedure, ruling out any such qualifications on the ground of judicial or quasi-judicial acts in the application of the principle of audi alteram partem. The failure to give an opportunity to the defendant to file his objection has amounted to shuttig out a nroner hearinc to the de-fendant and has resulted thereby in a con-travention of the principles of natural jus-tice. The (sic) have been viti-ated thereby. It is only just and fair thatthe defendant-petitioner should have an opportunity to controvert the facts contained in the plaintiff's application filed on 10-11-72, before the final order can be passed.

10. This is, however, not the only non-conformance. There is again a non-conformance to the procedure established by Law for a fair disposal of a matter. On the specific prayer made on behalf of the defendant-petitioner, the Memo. No. 1433 dated 30-5-72 sent by the District Inspector of Schools (S. E.), Midnapore to the Sub-Divisional Officer, Contai, was sent for and produced. But one looks in vain to the final order passed for even a reference to --far less a consideration of--that material document. This is clearly bad and repugnant and has operated to the prejudice of the defendant-petitioner. The impact of that Memo, on the points at issue should have been duly considered by the learned Munsif before arriving at his final conclu-sions in respect of the three applications filed on behalf of the plaintiff-opposite party for a delivery of the documents and papers. This has resulted in a failure of justice and a non-conformance to the procedure established by law. The ultimata findings are also bad on this account. Nothing turns on the other two points taken however by Mr. Bhunia in support of tha first dimension of his arguments as those are not material and do not ultimately affect the point at issue. On an over-all consideration of the submissions made under, this head, I hold that there is a considerable force behind the same. In Senaca's Medea, 6 Rep 52 it has been observed that 'Qui Aliquid Statuerit parte inaudita altera, aequum licet dixcrit, hand acquum faccrit' (He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right). I agree with the same and I uphold the first branch of Mr. Bhu-nia's contentions.

11. In view of the aforesaid findings, arrived at on the first dimension of Mr. Bhunia's submissions relating to natural ju.stice and procedure, it is no longer necessary to consider the second dimension of his contentions. I make it quite clear however that I make no observations on the merits of the case and leave the same open for a proper determination by the Court below.

12. In the result, I make the Rule absolute; set aside the order dated 14-11-72 passed by Shri A. C. Acharyya, Munsif, First Court, Contai in Title Suit No. 88 of 1972; and I remand the three applications to the Court below for being disposed of on merits, in accordance with Law and ex-peditiously by the learned Munsif. First Court, Contai, after giving due opportunity to the defendant-netitioner of being properly heard by filing his objection to theplaintiff's application dated 10-11-72 and on a consideration of the Memo. No. 1433 dated 30-5-72 sent by the District Inspector of Schools (Secondary Education), Midnapore to the Sub-Divisional Officer, Contai.

13. There shall be no order as to costs. The records are to go down as early as possible.